This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from an Order of Dismissal of the South Carolina Division of Motor Vehicle Hearings (DMVH). The DMVH’s Order of Dismissal was issued following a hearing held pursuant to S.C. Code Ann. § 56-9-363 (2006). The Department claims that the DMVH erroneously rescinded the suspension of Respondent’s registration privileges. The Administrative Law Court (ALC or Court) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 56-9-363 (Supp. 2006) and S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon review, the DMVH’s Final Order and Decision is affirmed.

FACTS

On March 14, 2006, the Department sent Respondent Paul A. Dunbar, IV, written notice that, as a result of a motor vehicle accident that occurred on April 22, 2005, his registration privileges in South Carolina would be suspended pursuant to S.C. Code Ann. § 56-9-351, effective March 29, 2006, unless he: (i) provided written verification that the vehicle involved in the accident was insured at the time of the accident; (ii) filed a notarized release of liability from all persons who suffered property damage and/or bodily injury as a result of the accident; (iii) filed an installment agreement setting forth payments to be made for all claims of property damage and/or bodily injury resulting from the accident; or (iv) posted a security deposit with the Department in the amount of $15,000. The Department’s notice described the vehicle involved in the accident by its tag number.

On May 23, 2005, pursuant to Section 56-9-363, Kenneth C. Anthony, Jr. as attorney for Dunbar filed a letter requesting a hearing to challenge the suspension. A hearing was held on May 1, 2006. Anthony as attorney for Dunbar appeared with his client at the hearing, but no one on behalf of the Department appeared. During the hearing, Anthony moved for “dismissal of that suspension on the basis that there’s no proof that liability insurance did not exist on the date or that an accident even occurred on that date.” At no point prior to, or after, the hearing did the Department file anything with the DMVH.

On August 10, 2006, the DMVH hearing officer issued an Order of Dismissal, pursuant to ALC Rule 23,[1] in which he rescinded Dunbar’s suspension. Specifically, he held that “[t]here was no evidence/testimony corroborating that the Respondent’s vehicle had been involved in an accident/collision.” The Department now appeals the DMVH’s Order of Dismissal.[2]

ISSUES ON APPEAL

1.Did the DMVH err in holding a hearing with less than the thirty-day notice required by S.C. Code Ann. § 1-23-320(a) (Supp. 2006)?

2.Did the DMVH violate its statutory duties by failing to gather copies of the Department’s records as evidence to be used against Dunbar at the hearing?

3.Did the DMVH hearing officer erroneously shift the burden of proof to the Department to demonstrate that Dunbar’s vehicle had been involved in an accident?

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision [of the agency] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2006).

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). A decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).

The statutes at issue here were enacted by the Legislature to discourage individuals who are involved in motor vehicle accidents from evading their financial responsibilities with respect to such accidents. Section 56-9-351 provides that:

Within sixty days of receipt of a report of a motor vehicle accident within this State which has resulted in bodily injury or death or damage to the property of any one person in the amount of two hundred dollars or more, the Department of Motor Vehicles shall suspend the license of each operator or driver if he is the owner of the motor vehicle involved in the accident and all registrations of each owner of a motor vehicle involved in the accident.

S.C. Code Ann. § 56-9-351 (2006). Pursuant to S.C. Code Ann. § 56-9-352 (2006), Section 56-9-351 does not apply in several different situations, including, among others, where the vehicle in question was insured at the time of the accident.

S.C. Code Ann. § 56-9-363 (2006) grants those who become subject to suspension pursuant to Section 56-9-351 the right to a hearing. Specifically, it provides that:

Any person whose driving privilege becomes subject to suspension under the provisions of this article may request an informal hearing prior to the suspension in order that he might prove to the Department that no reasonable possibility exists that a civil court might enter a judgment against him as a result of the accident in question.

Because of the issues presented in this appeal, it is necessary to note that, prior to January 1, 2006, the Department’s Office of Administrative Hearings (OAH) held the hearings requested under Section 56-9-363. However, in the summer of 2005, S.C. Code Ann. § 1-23-660 was extensively amended by Act No. 128, § 22, 2005 S.C. Acts 1503 (the DMVH Act). Pursuant to the DMVH Act, the DMVH was created as a division of the ALC and, as of January 1, 2006, “the duties, functions, and responsibilities of all hearing officers and associated staff” of the Department were transferred to the DMVH. Act No. 128, § 22, 2005 S.C. Acts 1503 (codified as amended at S.C. Code Ann. § 1-23-660 (Supp. 2006)). The DMVH Act requires DMVH hearing officers to conduct their hearings in accordance with the ALC’s rules of procedure. Id.

Duty to Gather the Department’s Records

The Department claims that,“at the DMVH’s request,” the DMVH was given electronic access to its records “specifically and precisely” so that these materials would be available to DMVH hearing officers, and that because the DMVH Act transferred “the duties, functions, and responsibilities of all hearing officers and associated staff” of the Department to the DMVH, the DMVH had a duty, which it failed to perform, to download the accident report relevant to this case. I disagree.

As an initial matter, the Department did not raise this issue to the DMVH hearing officer, and the hearing officer did not rule on this issue. Issues that are neither raised to nor ruled upon by the trial court are not preserved for appellate review. Flowers v. S.C. Dep’t of Highways and Pub. Transp., 309 S.C. 76, 79, 419 S.E.2d 832, 834 (Ct. App. 1992). Therefore, this issue has not been properly preserved.

Moreover, there is no evidence in the Record that supports the Department’s factual claims that either the DMVH requested access to the Department’s records or that the DMVH was given access to the Department’s records. ALC Rule 36(G) provides that an “Administrative Law Judge will not consider any fact which does not appear in the Record.” As the appellant in this case, the onus was on the Department to provide this Court with sufficient means to analyze the merits of its claims. SeeMedlock v. One 1985 Jeep Cherokee VIN 1JCWB7828FT129001, 322 S.C. 127, 132, 470 S.E.2d 373, 376 (1996).

It is for these reasons that the South Carolina Supreme Court has held on numerous occasions that the issuance of a default judgment based on a party’s failure to appear at a proceeding or to make requisite legal filings is not directly appealable. See, e.g., Edith v. State, 369 S.C. 408, 409, 632 S.E.2d 844, 844 (2006) (default judgment based on failure to respond to a conditional order of dismissal); Belue v. Belue, 276 S.C. 120, 276 S.E.2d 295 (1981) (default judgment based on failure to appear); Odom v. Burch, 52 S.C. 305, 29 S.E. 726 (1898) (default judgment based on failure to file answer). Instead, the court has held that the proper procedure for challenging a default judgment is to move the trial court to set aside the judgment pursuant to SCRCP Rule 60(b). SeeWinesett v. Winesett, 287 S.C. 332, 334, 338 S.E.2d 340, 341 (1985). In Winesett, the Supreme Court explained the reasoning behind this rule:

An early justification for this rule was that a defendant who does not appear and answer “has no status in court which will enable him to appeal from the judgment rendered.” An additional justification is that a party appealing a default judgment will ordinarily be precluded from raising any issues on appeal because they were not first presented below. Finally, the appellant will often not be able to meet his burden of providing this Court with a record sufficient to permit an adequate review.

Winesett, 287 S.C. at 333-34, 338 S.E.2d at 341.

Here, the DMVH hearing officer dismissed this case pursuant to the default provisions set forth in ALC Rule 23 after the Department failed to submit any evidence or otherwise participate in the proceeding. Therefore, the DMVH’s Order of Dismissal is not appealable. The Department should have challenged the default judgment by filing a Rule 29(D)[5] motion to reconsider with the DMVH.[6] The DMVH’s ruling on such a motion would have been appealable to this Court.

Furthermore, as discussed below, even if the DMVH’s Order of Dismissal were appealable, reversal of the DMVH’s Order of Dismissal would still not be warranted.

B. Duties Transferred to the DMVH Did Not Include Evidence-Gathering Duties

The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). In ascertaining the intent of the Legislature, a court should not focus on any single section or provision but should consider the language of the statute as a whole. Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). Although there is no single, invariable rule for determining legislative intent, the language must be read in a sense which harmonizes with its subject matter and accords with its general purpose. Scholtec v. Estate of Reeves, 327 S.C. 551, 558, 490 S.E.2d 603, 607 (Ct. App. 1997).

Here, the statutory framework of the DMVH Act demonstrates that, by devolving the duties, functions, and responsibilities of the hearing officers and associated staff of the Department to the DMVH, the Legislature did not intend to transfer the Department’s evidence-gathering duties to the DMVH. First, the DMVH Act requires DMVH hearing officers to abide by the Code of Judicial Conduct, as contained in Rule 501 of the South Carolina Appellate Court Rules. Act No. 128, § 22, 2005 S.C. Acts 1503 (codified as amended at S.C. Code Ann. § 1-23-660 (Supp. 2006)). Canon 3 of the Code of Judicial Conduct states: “A judge shall perform the duties of judicial office impartially and diligently.” Rule 501 SCACR, Canon 3 (emphasis added). As a fundamental matter, the impartiality requirement prohibits a judge from investigating the very violations that he or she is required to adjudicate. See Commentary to Rule 501 SCACR, Canon 3(B)(7) (“A judge must not independently investigate facts in a case and must consider only the evidence presented”); seealsoState v. Adams, 291 S.C. 132, 134, 352 S.E.2d 483, 485 (1987) (“A magistrate who participates in a general search for evidence is not neutral and detached.”); In re Marriage of Smith, 448 N.E.2d 545, 550 (Ill. App. Ct. 1983) (holding, in a marriage dissolution proceeding, that it was the responsibility of the parties, not the trial court, to obtain and present adequate information regarding husband’s pension rights). This impartiality requirement also applies to court personnel. See Rule 501 SCACR, Canon 3(C)(2) (“A judge shall require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.”)

Second, the DMVH Act makes the DMVH a part of the ALC, not the Department. Act No. 128, § 22, 2005 S.C. Acts 1503 (codified as amended at S.C. Code Ann. § 1-23-660 (Supp. 2006)). By separating the DMVH from the Department, the Legislature created an independent tribunal for adjudicating license and registration suspension matters. Therefore, it is highly unlikely that the Legislature intended for the DMVH to perform the same prosecutorial-type duties that the Department’s OAH once performed. For these reasons, I hold that it was not the duty of the DMVH to gather copies of the Department’s records.

Burden of Proof

The Department also argues that the DMVH hearing officer erroneously shifted the burden of proof to the Department to demonstrate that Dunbar’s vehicle had been involved in an accident. In making this argument, the Department notes that Section 56-9-363 states that the purpose of the hearing is to give the motorist an opportunity to “prove to the Department that no reasonable possibility exists that a civil court might enter a judgment against him as a result of the accident in question.” Therefore, the Department concludes that “[t]here is no requirement that the [Department] prove anything at all.”

Before resolving this issue, a careful analysis of the term “burden of proof” is required. “The term ‘burden of proof’ has been used to describe two related but distinct concepts: the burden of production and the burden of persuasion.” 29 Am. Jur. Evidence § 155 (1994); seealsoDir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 272 (1994). The burden of persuasion refers to the duty to prove the truth of an issue by the quantum of evidence the law demands in the case in which the issue arises.[7] Alex Sanders & John S. Nichols, Trial Handbook for South Carolina Lawyers § 9.1 at 369 (3d ed. 2005). The burden of production, or burden of going forward with the evidence, refers to the obligation of a party to proceed with evidence, at any stage of the trial, to make or meet a prima facie case.[8]Id. § 9.1 at 369. As a trial progresses, the burden of production may shift from one side to the other as the respective parties present evidence. Id. § 9.1 at 370. The burden of persuasion, however, does not generally shift. Id. § 9.1 at 369. The current standard practice is to use the term “burden of proof” to refer to the burden of persuasion. Greenwich Collieries, 512 U.S. at 276. This is the meaning intended by this Court when using the phrase “burden of proof” herein.

Here, Section 1-23-660 specifically requires DMVH hearing officers to conduct their hearings in accordance with the ALC’s rules of procedure. One of those rules, ALC Rule 29(B), expressly states: “In matters involving the assessment of civil penalties, the imposition of sanctions, orthe enforcement of administrative orders, the agency shall have the burden of proof.” In Section 56-9-363 proceedings, the Department is seeking to suspend a person’s registration privileges and/or driver’s license. Therefore, in such proceedings, the Department bears the burden of proof with respect to establishing that a vehicle owned by the motorist was involved in an accident in South Carolina resulting in bodily injury, death or damage to the property of any one person in the amount of $200 or more. See S.C. Code Ann. § 56-9-351 (2006); seealso Stephen P. Bates, The Contested Case Before the ALJD, South Carolina Administrative Practice & Procedure 161, 200-01 (Randolph R. Lowell & Stephen P. Bates eds., 2004) (discussing generally the burden of proof in administrative enforcement cases).

The fact that Section 56-9-363 states that the purpose of the hearing is to give the motorist an opportunity to “prove to the Department that no reasonable possibility exists that a civil court might enter a judgment against him as a result of the accident in question” does not shift the Department’s burden of proof to the motorist. Section 56-9-363 is analogous to those statutes and court rules that require nonmoving parties to “show cause” why a certain action should not be taken against them. Such statutes and court rules do not shift the moving party’s burden of proof to the nonmoving party. See, e.g., Brasington v. Shannon, 288 S.C. 183, 184, 341 S.E.2d 130, 131 (S.C. 1986) (holding that the use of a rule to show cause to initiate a contempt proceeding did not shift the burden of proof to the nonmoving party); State v. Saulter, 224 S.E.2d 247, 249 (N.C. Ct. App. 1976) (“Though [the habitual offender statute] provides that the court enter an order directing the person named to show cause why he should not be barred from operating a motor vehicle on the highways of this State, the burden of proof is not on the defendant.”); Davis v. Commonwealth, 252 S.E.2d 299, 301 (Va. 1979) (holding, in a case involving Virginia’s habitual traffic offender statute, that the trial court’s order requiring motorist to show cause why he should not be barred from operating motor vehicles on Virginia’s highways did not shift the burden of proof to the motorist); Brennan v. Johnson, 391 A.2d 337, 339 n.1 (Me. 1978) (where, in a case involving Maine’s habitual traffic offender law, the Maine Supreme Court stated that “we observe that resort to a show cause order (as provided by the Legislature here) does not relieve a plaintiff of his initial burden of going forward with evidence nor of his ultimate burden of proof”). Similarly, Section 56-9-363 does not shift the Department’s burden of proof to the motorist.

However, once the Department presents prima facie evidence to show that a vehicle owned by the motorist was involved in an accident in South Carolina resulting in bodily injury, death or property damage to any one person in the amount of $200 or more, the burden shifts to the motorist to: (i) present evidence to rebut the Department’s prima facie case;[9] (ii) present evidence to show the applicability of one of the exceptions set forth in Section 56-9-352;[10] or (iii) prove that no reasonable possibility exists that a civil court might enter a judgment against him as a result of the accident in question.[11]If, after the Department establishes its prima facie case, the motorist does not present any evidence, then the motorist’s suspension must be sustained.

Here, the Department did not present any evidence to show that a vehicle belonging to Dunbar was involved in an accident in South Carolina resulting in bodily injury, death or property damage to any one person in the amount of $200 or more. The Department’s contention that the Notice of Suspension issued to Dunbar — which Dunbar included with his letter requesting a hearing — sufficiently established the Department’s prima facie case is without merit. As a basic matter, the Notice of Suspension does not indicate whether any bodily injury, death or property damage occurred as a result of the referenced accident. Therefore, it was not error for the DMVH hearing officer to dismiss this case based on the Department’s failure to submit any evidence.

Accordingly, because it was not the duty of the DMVH to gather the Department’s records, and because the Department failed to meet its burden of proof, the DMVH’s Final Order and Decision must be affirmed.[12]

ORDER

IT IS HEREBY ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.

The administrative law judge may dismiss a contested case or dispose of a contested case adverse to the defaulting party. A default occurs when a party fails to plead or otherwise prosecute or defend, fails to appear at a hearing without the proper consent of the judge or fails to comply with any interlocutory order of the administrative law judge. Any non-defaulting party may move for an order dismissing the case or terminating it adversely to the defaulting party.

[2] The Department’s brief indicates it is appealing an amended order dated August 15, 2006, but the record contains only the order dated August 10, 2006. However, the Notice of Appeal indicates it is appealing the August 10, 2006, order.

[4] In conjunction with the DMVH Act, which is discussed infra, Section 56-9-363 was amended to read in pertinent part:

Any person whose driving privilege becomes subject to suspension or is suspended under the provisions of this article may request an administrative hearing with the Division of Motor Vehicle Hearings prior to the suspension or within thirty days after written notice of the suspension in order that he might prove that no reasonable possibility exists that a civil court might enter a judgment against him as a result of the accident in question.

Act No. 381, § 9, 2006 S.C. Acts 2933 (effective June 13, 2006).

[5] Under ALC Rule 29(D), any party may move for reconsideration of an administrative law judge’s decision in a contested case provided that a petition for judicial review has not been filed. Rule 29(D) provides that the reconsideration is subject to the grounds for relief set forth in Rule 60(B) (1 through 5), SCRCP. Nevertheless, recognizing the practical need for a general motion for reconsideration in administrative proceedings, Justice Toal set forth that “in practice, motions for reconsideration under Rule 59(e)” of the Rules of Civil Procedure may also be made. Jean H. Toal et al., Appellate Practice in South Carolina 40 (1999).

[6] Although the Note to ALC Rule 29(D) states that “[t]he filing of a motion for reconsideration is not a prerequisite to filing a notice of appeal from the final decision of an administrative law judge,” it is not this Court’s view that this provision should be interpreted, contrary to the above reasoning, to allow a default judgment-type administrative decision to be directly appealed. In other words, if an issue is not raised or a record established to support a party’s grounds for appeal, the appeal will be ineffectual.

[7] In an administrative hearing, the burden of proof is generally a preponderance of the evidence. Anonymous (M-156-90) v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998).

[9]SeeBrennan, 391 A.2d at 337 (holding that a show cause order required the defendant to “meet a prima facie case” once it had been made out by the plaintiff); Davis v. Commonwealth, 252 S.E.2d at 301 (holding that, once Commonwealth established a prima facie case by presenting certified transcripts of a motorist’s convictions, the show cause order shifted “the burden of going forward with evidence” to the motorist).

[10] Because the motorist is in a better position to determine, and present proof regarding, whether one of the exceptions set forth in Section 56-9-352 applies in a certain situation, the motorist bears the burden of production with respect to this issue once the Department establishes its prima facie case. SeeRoberts v. Roberts, 296 S.C. 93, 99, 370 S.E.2d 881, 884 (Ct. App. 1988), affirmed as modified on other grounds by 299 S.C. 315, 384 S.E.2d 719 (1989) (“The general rule is that the burden of evidence is imposed on the party best able to sustain it; so the party having peculiar knowledge of the facts or control of evidence, relating to an issue, has the burden of evidence as to it.”)

[11] When a motorist seeks to prove that no reasonable possibility exists that a civil court might enter a judgment against him, he is essentially asserting an affirmative defense. SeeFMI, Inc. v. RMAX, Inc., 286 S.C. 343, 347, 333 S.E.2d 360, 363 (Ct. App. 1985) (explaining that an affirmative defense does not deny an element of the plaintiff’s case, but instead “asserts new matter to bar the action”). Therefore, the motorist bears the burden of proof, not just the burden of production, with respect to establishing such a defense once the Department makes its prima facie case. Seeid.; see alsoFloyd v. Floyd, 365 S.C. 56, 75, 615 S.E.2d 465, 475 (Ct. App. 2005) (where, in a contempt proceeding in which a motion for a rule to show cause was granted, the South Carolina Court of Appeals held that “[o]nce the movant makes a prima facie showing by pleading an order and demonstrating noncompliance, the burden shifts to the respondent to establish his defense and inability to comply” (quotingEaddy v. Oliver, 345 S.C. 39, 42, 545 S.E.2d 830, 832 (Ct. App. 2001)); seegenerallyCole v. S.C. Electric and Gas, Inc., 355 S.C. 183, 195, 584 S.E.2d 405, 412 (Ct. App. 2003) (“It is well established that a party pleading an affirmative defense has the burden of proving it.”)

[12] Moreover, Anthony indicates in his brief that he was ready to go forward with evidence in support of his case at the hearing before the hearing officer summarily dismissed the case and attached that evidence—a copy of a notarized release of financial responsibility from the other driver to his brief. While this court in an appellate capacity will not consider materials not presented to the trial court and not contained in the record, it appears the correct result was reached by the dismissal and the suspension should not have gone into effect at all.